Top Nepal court’s stay order on charter deal may force big parties to consult others

Less than a fortnight after Nepal’s four major political parties reached agreement on the new constitution, the Supreme Court has imposed a stay on its implementation on the grounds that it violates the country’s interim constitution, the constitution under which Nepal is being governed today.

The Nepal apex court’s directive has ruffled feathers especially among the four parties to the agreement on the new constitution

The agreement raised hopes in Nepal as it was the first time in many years that the four main parties – the Nepali Congress, Communist Party of Nepal (Unified Marxist-Leninist), United Communist Party of Nepal (Maoist) and the Terai-based Madhesi Front – reached a consensus of sorts on several key issues regarding the new constitution.

A new constitution was a key component of the peace deal that ended Nepal’s civil war a decade ago. Political parties have been trying to reach agreement on it since 2008, when Nepal’s first Constituent Assembly was elected. Deadlines have been missed repeatedly as consensus has proved elusive, keeping this former Himalayan kingdom in a state of political impasse and uncertainty. The consensus reached among the four parties that culminated in the 16-point agreement on June 8 is historic especially in the context of Nepal’s fractious politics.

In April-May this year, the country was jolted by powerful earthquakes that caused extensive damage and destruction. The political class was widely blamed for the administration’s sluggish response to providing relief to quake victims. Their credibility on the line, four main parties came together to break the impasse. That effort resulted in the June 8 agreement.

The four parties agreed on retaining a Westminster-type parliamentary democracy, restructuring the state along federal lines and on forming eight provinces. Besides, they concurred on a mixed electoral system wherein 60 per cent of lawmakers would be elected directly through a first-past-the-post system and the rest through the proportional electoral system.

However, several important decisions on Nepal’s federal restructuring were kicked further down the road. The boundaries of the proposed provinces were left to be determined by a commission of experts to be set up in future while decisions on the names of the provinces were set aside for future provincial assemblies.

The four-party agreement on the constitution evoked a largely positive response from the Nepali people. It was seen as a long-overdue breakthrough but given dashed hopes in the past, it was met with cautious optimism.

The agreement came under fire from several quarters. Scores of parties representing Nepal’s marginalized groups and communities were excluded from the pact. The ‘consensus’ reached is partial and flawed.

The agreement puts off decisions on delineation of boundaries and names of provinces for a future date. Pro-federalism sections are pointing out that this is far too important an issue to be left undecided. Besides, decisions concerning the key question of restructuring the state should be made by an elected body, not a committee of appointed officials. Were the four parties dodging responsibility by leaving these difficult decisions to ‘experts’? Would the deferring of decisions on provincial boundaries and names end up delaying indefinitely or putting in cold storage the federal restructuring of the state?

Importantly, the agreement violates the interim constitution. This was the point the Supreme Court made while issuing an order blocking its implementation. It goes against at least three clauses of the interim constitution, the apex court said, especially Article 138 (3), which states that the “final settlement on the matters related to the restructuring of the State and the form of federal system of governance shall be as determined by the Constituent Assembly.”

The Supreme Court order has evoked mixed reactions. It has been hailed for putting brakes on the four main parties’ attempt at “super fast-tracking” the constitution. Others have criticized it for overstepping bounds by interfering with the work of a sovereign, elected assembly. It has also been accused of judicial overreach.

The apex court directive has ruffled feathers especially among the four parties to the agreement. They have rejected the court order and announced that they propose to go ahead with their plan to produce a draft constitution by mid-July. The judiciary and the Constituent Assembly are on a collision course now.

While more delay in Nepal’s constitution drafting is unfortunate, the Supreme Court stay will hopefully make the four major parties rethink the procedure they adopted to reach an agreement. Their reluctance to consult small parties in order to reach the June 8 agreement is not the way to go about writing a constitution. Such a constitution will only end up being a starting point for future conflicts.

Dr Sudha Ramachandran is an independent journalist/researcher based in Bangalore, India, who writes on South Asian political and security issues. She can be reached at sudha.ramachandran@live.in